Citation Nr: 0313853
Decision Date: 06/25/03 Archive Date: 06/30/03
DOCKET NO. 01-04 928 ) DATE
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)
On appeal from the
Department of Veterans Affairs Regional Office in Muskogee,
Oklahoma
THE ISSUE
Entitlement to service connection for an acquired psychiatric
disorder.
REPRESENTATION
Appellant represented by: Oklahoma Department of
Veterans Affairs
ATTORNEY FOR THE BOARD
Raymond F. Ferner, Counsel
INTRODUCTION
This matter comes before the Board of Veterans' Appeals (BVA
or Board) on appeal from a May 2000 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Waco, Texas, that denied the benefit sought on appeal. (The
veteran's claims file was subsequently transferred to the
jurisdiction of the RO in Muskogee, Oklahoma.) The veteran,
who had active service from January 1970 to February 1970,
appealed that decision to the BVA and the case was referred
to the Board for appellate review.
REMAND
A preliminary review of the record discloses that pursuant to
authority provided by 38 C.F.R. § 19.9(a)(2) (2002), the
Board undertook additional evidentiary development in this
case. However, a recent opinion from the United States Court
of Appeals for the (Federal Circuit) held that 38 C.F.R. §
19.9(a)(2) is invalid because it permits the Board to
consider additional evidence without having to return the
case to the RO for initial consideration of that evidence.
See Disabled American Veterans v. Secretary of Veterans
Affairs, 327 F.3d 1339 (Fed. Cir. 2003). The Federal Circuit
explained that when the Board obtains and considers evidence
that was not before the RO without a waiver of initial
consideration of that evidence by the RO, an appellant has no
means to obtain one review on appeal to the Secretary as
provided by 38 U.S.C.A. § 7104(a) (West 2002), because the
Board is the only appellate tribunal under the Secretary.
Therefore, it appears that evidence obtained by the Board
cannot be considered by the Board as an initial matter.
Therefore, in order to give the veteran every consideration
with respect to the present appeal and to ensure due process,
it is the Board's opinion that further development of the
case is necessary. Accordingly, this case is REMANDED for
the following actions:
1. In addition to the development
requested below, the RO is requested to
review the veteran's claim and undertake
any additional development deemed
necessary to satisfy the notice and
assistance provisions of the Veterans
Claims Assistance Act of 2000 (codified
at 38 U.S.C. §§ 5100, 5102, 5103, 5103A,
5016, 5107, 5126).
2. The RO should review the veteran's
claim in light of all evidence associated
with the claims file subsequent to the
file's transfer to the Board in December
2001. If the benefit sought is not
granted, the veteran and his
representative should be furnishes
Supplemental Statement of the Case and be
afforded a reasonable opportunity to
respond before the record is returned the
Board for further review.
The purpose of this REMAND is to obtain additional
development and to ensure due process, and the Board does not
intimate any opinion as to the merits of the case, either
favorable or unfavorable, at this time. The veteran is free
to submit any additional evidence and or argument he desires
to have considered in connection with his current appeal. No
action is required of the veteran unless he is notified.
____________________________________________
S. L. KENNEDY
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2002).